Effective May 7, 2022, employers that monitor their employee’s electronic communications are required to provide written notice of such monitoring to current employees and new hires. If you have questions about how the new law affects your business, talk to an employment lawyer.
Who Is Covered?
The new law, which amends the New York Civil Rights Law, applies to any private employer with a place of business in New York. “Employer” is defined as any individual, corporation, partnership, firm, or association, regardless of size. Notably, the law does not address whether employers who only have remote operations within the state are covered, or whether remote workers living outside the state are covered.
What Activities Are Covered?
Employers who monitor or intercept “telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage of or by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio, or electromagnetic, photoelectronic or photo-optical systems,” must comply with the notice requirement.
What Are the Notice Requirements?
Employers are required to provide written notice upon hire to all employees detailing the types of electronic monitoring the employer may use. The notice can also be in electronic form (e.g. viewable on the company’s intranet).
The notice should have language to the effect that all electronic communications, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic, or photo-optical system may be subject to monitoring at any and all times and by any lawful means.
The law also requires employees’ acknowledgment of receipt of the notice, either in writing or electronically. Employers should retain all written or digital acknowledgments for compliance purposes. Finally, employers must also post a notice of electronic monitoring in a conspicuous place readily available for viewing by employees.
Which electronic communications are exempt from the new law?
The law does not apply to processes that:
- Manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage
- Are not targeted to monitor or intercept the electronic communication of a particular individual and
- Are performed solely for computer system maintenance and/or protection
What Are the Consequences of Non-compliance?
Employers who violate the law face fines from up to $500 for the first offense, up to $1,000 for the second offense, and up to $3,000 for the third and each subsequent one. The New York State Attorney General will enforce the law, but there is no private right of action.
Employers should consult with counsel to review and update their electronic monitoring policies and create the required notices so that they are prepared to provide notices to current employees by the effective date and to future employees upon hiring.